With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.
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Late in the day on May 20, Lafayette, Louisiana Federal District Court Judge Robert Summerhays issued a preliminary injunction blocking the Biden administration from lifting the “Title 42” pandemic expulsions policy. In the name of preventing the spread of COVID-19, this policy has enabled the rapid removal of migrants from the U.S.-Mexico border more than 1.9 million times since March 2020, without affording the chance to ask for asylum or other protection. The judge’s action makes it likely that this will continue, curtailing the right to seek asylum at the border for months or even years.
The Centers for Disease Control and Prevention (CDC) had determined on April 1 that Title 42 was no longer necessary, setting May 23 as its final day. Twenty-four Republican state attorneys-general filed suit to reverse this rescission, claiming that ending Title 42 would harm their states by enabling an increase in migrants. They elected to file their suit before Judge Summerhays, a Trump appointee in the federal courts’ conservative Fifth Circuit, which encompasses Texas, Louisiana, and Mississippi.
Summerhays’ ruling was unsurprising: he had already prohibited the Department of Homeland Security (DHS) from preparing to lift Title 42 while he weighed arguments. Lawyers were unable to persuade the judge to limit his decision just to the states that filed suit, which would have allowed Title 42 to end in the Democratic-run border states of California and New Mexico.
The Department of Justice will appeal Summerhays’ injunction, but the Fifth Circuit Court of Appeals is likely to uphold it. In the meantime, the Biden administration will comply with the court’s order and continue to expel migrants quickly.
If the administration follows the ruling, its path to ending Title 42 requires the CDC to go through the federal government’s “notice and comment” rule-making procedures. Aaron Reichlin-Melnick of the American Immigration Council explains:
Notice and comment rulemaking can be a lengthy process that will likely take the CDC months to carry out if it seeks to end Title 42 again. It requires the preparation of a formal “notice of proposed rulemaking,” a comment period of 30-60 days, agency review of all comments, the preparation of a final rule, review by the Office of Management and Budget, and then usually the final rule is delayed at least 30 days before going into effect. And even if the CDC were to go through this process, states in opposition to the policy change could simply sue again to block that new rule.
Though Title 42 was an emergency provision put in place rapidly, and although the March 2020 CDC order stated that it could be ended at any time, the Louisiana judge contends that the “emergency” cannot be rescinded without a deliberative process that could take, in Reichlin-Melnick’s estimation, “months, possibly years.”
By the end of May, the Biden administration will almost certainly have hit its 2 millionth expulsion of a migrant at the border under Title 42.
In an analysis published on May 23, WOLA listed three likely consequences of keeping Title 42 in place.
First, the number of migrants arriving at the U.S.-Mexico border each month is unlikely to decline. It will remain near historic highs. The period since March 2020 has seen a sharp increase in the population of migrants who wish to avoid capture, rather than turn themselves in to seek protection. Encounters with single adults—a demographic that includes many non-asylum seekers—have quintupled from pre-pandemic levels. Repeat encounters have skyrocketed: Title 42 means that migrants from Mexico, El Salvador, Guatemala, and Honduras get dropped at the Mexico border without being processed, enabling many to attempt to cross again.
Second, migrants who do seek protection will continue to be forced either to cross improperly, or to wait for many more months in dangerous Mexican border cities. Because land ports of entry remain closed to them, asylum seekers will face strong incentives to risk their lives by climbing the border wall, fording the Rio Grande, and paying organized crime to smuggle them across so that they may turn themselves in to Border Patrol. If they do not wish to do that, migrants will remain stranded in Mexican border towns, where data collected by Human Rights First show at least 10,250 reports of murder, kidnapping, rape, torture and other violent attacks on migrants since January 2021.
Third, more migrants will come from “difficult-to-expel” countries, leaving Title 42 applied to only a minority of migrants. 99 percent of migrants who get expelled come from the four countries whose citizens Mexico allows to be expelled over the land border: Mexico, El Salvador, Guatemala, and Honduras. (In early May, Mexico agreed to take a limited number of Cuban and Nicaraguan citizens as well. As discussed below, thousands of Haitian migrants also get expelled by air.) Citizens of all other countries face minuscule odds of being expelled if they seek protection in the United States: their countries are too distant, or their governments have poor relations with the United States. These “other countries” made up 46 percent of migrants encountered at the border in April 2022. As a result, the Biden administration did not apply Title 42 to 59 percent of the migrants it encountered that month. That percentage is likely to increase as Title 42 persists.
In April, a remarkable 78 percent of migrants arriving as families came from these “difficult-to-expel” countries. Migrant families who turn themselves in to U.S. authorities to seek protection, however, now have a legal lifeline. A March 2022 District of Columbia appeals court ruling, allowing families to express fear of persecution or torture, went into effect on May 23.
Under the Huisha-Huisha v. Mayorkas decision, CBP officers and Border Patrol agents must give families who show fear of expulsion either an interview with an asylum officer to evaluate the credibility of that fear, or placement in regular asylum proceedings and release into the United States. New guidance issued to CBP and Border Patrol requires officials, as the San Diego Union-Tribune explains,
to watch for “manifestations of fear” that include asylum seekers saying they are afraid of being in that country, asylum seekers saying they have already been harmed or that they will be harmed in that country, as well as asylum seekers showing signs of fear. The documents list “hysteria, trembling, unusual behavior, incoherent speech patterns, self-inflicted harm, panic attacks, or an unusual level of silence” as examples of nonverbal signs of fear.
The guidance does not require U.S. personnel to ask the families if they fear expulsion. The families must speak up themselves, or the U.S. official must detect the above-mentioned signs of fear.
These new procedures will give families from “easy-to-expel” countries a greater chance of avoiding Title 42 expulsion. An unnamed DHS official told NBC News that this new requirement is “the first nail in the coffin of Title 42.” In April 2022, DHS used Title 42 to expel 13 percent of families it encountered; this percentage is likely to decline still further.
The Biden administration already refuses to apply Title 42 to unaccompanied children. The combination of Summerhays’ ruling and the Huisha-Huisha procedures is likely to turn Title 42 into a policy applied almost entirely to single adults.
However, Lee Gelernt, the ACLU’s lead litigator on the Huisha-Huisha case, warned that some families may still be returned to danger: “We have significant concerns that families who need protection will not be screened because they will be too scared or confused to speak up without prompting and that non-verbal ‘manifestations’ of fear are too difficult to determine,” he told the Union-Tribune.
The Louisiana ruling likely reduces momentum for Republican members of Congress, accompanied by some moderate Democrats, to pass legislation to keep Title 42 in place. A bill introduced by Sens. James Lankford (R-Oklahoma) and Kyrsten Sinema (D-Arizona) would keep Title 42 until after the government’s COVID emergency declaration is terminated, potentially suspending the right to seek asylum at the border for years. It appeared that this legislation may have had enough support to be attached to a COVID-19 relief bill, but after the Louisiana court ruling some of its Democratic supporters, like Sen. Mark Kelly (D-Arizona), appear less willing to seek to attach it to the COVID measure. Republican senators insist that they still want a vote; the U.S. Congress is in recess until the week of June 6.
Meanwhile, the pandemic measure has not prevented migration at the border from reaching record levels. Internal CBP data reported by the New York Times and Axios point to 8,000 to 8,200 border crossings happening each day right now. About 1,200 adults and 1,300 family members per day are being released into the United States.
Axios revealed DHS documents’ estimate that 40,000 to 50,000 migrants, including over 10,000 Haitians, are now in Mexico awaiting an opportunity to cross. Judge Summerhays’ ruling had cited a figure of “between 30,000 to 60,000.”
At a rate of over 8,000 people per day, the backup inside Mexico is equivalent to just 6 or 7 days of migration. Erika Pinheiro of the Tijuana-San Diego legal aid group Al Otro Lado, which accompanied the mass processing of 20,000 Ukrainian migrants in March and April, told the New Yorker that CBP can handle a flow like this in an orderly way: “They have the capacity for humanitarian processing. If they treat everyone the way they treated the Ukrainians, we’ll clear this backlog in a matter of weeks.”
Between January 2021 and April 2022, about 700,000 undocumented migrants encountered at the border, mostly asylum seekers, were admitted into the United States, according to a New York Times analysis of federal data. Articles this week in the Times and the Dallas Morning News profiled the charity-run shelter networks in U.S. border towns that are endeavoring to receive these released migrants so that CBP doesn’t release them on these towns’ streets. “Attorneys to shelter operators to aid workers are in a constant scramble as ground conditions change and policies are applied to one nationality, such as Ukrainians, but not another,” the Morning News reported.
Pressure on shelters and service providers is mounting in Mexican border towns, too, where the northward flow of migrants is compounded by a steady southward stream of deportations and Title 42 expulsions from the United States (as WOLA discussed in a May 18 report from San Diego and Tijuana). The El Paso Times, La Verdad, and Milenio all reported this week from Ciudad Juárez, where the migrant shelter network is under stress, and where a growing number of Haitian migrants has been arriving.
NBC News reported that DHS is likely to ask Congress for “emergency supplemental” funding for the 2022 budget year to keep up with the cost of processing migrants. The Department claims that it is in danger of running out of money for this purpose before the fiscal year ends on September 30:
Without tapping into key programs, DHS agencies that handle migration would need roughly $1.2 billion in additional funds to cover the cost estimated if border crossings reach 10,000 per day, the document says. The extra costs would be higher if more migrants cross: $1.6 billion for 14,000 crossings a day and $2 billion for 18,000 per day.
At about the same time Judge Summerhays issued his ruling, CBS News reported an alarming statistic that got buried under the Title 42 news. In response to a Freedom of Information Act request, CBP informed CBS that, during fiscal year 2021, Border Patrol processed 12,212 unaccompanied children whom it had already processed and expelled, usually as members of family units.
About 33 times per day in 2021, then, an expelled family in Mexico appears to have “self-separated.” Parents made the wrenching choice to send their children back, unaccompanied, across the border, where they might be safer. The U.S. government stopped using Title 42 to expel families after a Washington, DC district court judge halted the practice in November 2020. Expulsions of families have continued at a robust rate, though, creating a perverse incentive for “self-separations.”
An unnamed U.S. official told CBS News that “The Biden administration has been ‘well-aware of this phenomenon’ of self-separations among migrant families and some officials have cited it as a reason to end Title 42.”
The independent online media outlet Nicaragua Investiga reports that “At least in 2022, nearly 20 Nicaraguans have died trying to cross the Rio Grande to reach the United States, and another number have perished en route to the U.S. border.”
Among those appear to be 7 Nicaraguan citizens dead or missing after being swept away by the Rio Grande in about a week:
The non-profit group Texas Nicaraguan Community has been keeping a grim count of the drownings.
Deaths are mounting elsewhere along the migrant route to the United States.
As noted above, DHS applies the Title 42 expulsions policy almost entirely to migrants from the countries whose citizens Mexico accepts across the land border. Other countries’ citizens tend not to be expelled, with one major exception: Haiti.
Migrants from the island nation, the poorest in the Western Hemisphere, are expelled often under a high-tempo aerial removal campaign that intensified in September 2021, when over 10,000 Haitian migrants arrived en masse on the banks of the Rio Grande in Del Rio, Texas. (See WOLA’s analysis published in February, when the Biden administration removed its 20,000th Haitian migrant.) Between September and April, CBP has encountered 39,585 Haitian migrants at the U.S.-Mexico border. It has used Title 42 to expel 14,559 of them, or 37 percent. No other country whose citizens are expelled by air comes close to Haiti.
Adding expelled Haitians to deported Haitians yields an even larger number of removals to a country currently experiencing a severe wave of gang violence, kidnappings, and anarchy following the July 2021 assassination of the country’s president.
This week, the Biden administration removed its 25,000th Haitian migrant by air since January 2021, according to a count kept by Tom Cartwright of Witness at the Border, who monitors removal flights and uses International Organization for Migration (IOM) data to make regular small adjustments to his estimates. By Cartwright’s count, the administration hit the 25,000 milestone on May 25.
CBP “migrant encounters” data show a sharp increase in Haitians arriving at the U.S.-Mexico border since February. With that has come a sharp increase in DHS removal flights. 19 planes took migrants back to Haiti during the 7 days between May 20 and May 26, including an unusual 4 flights over the May 21-22 weekend. “522 people were expelled by the Biden admin to Haiti yesterday and today alone,” Guerline Jozef of the Haitian Bridge Alliance told NBC News’s Jacob Soboroff on May 22.
By the morning of May 27, Cartwright’s count had risen to 25,700. Haiti’s population is estimated at 11.4 million, so 1 in every 444 people living in Haiti today was aboard a U.S. removal aircraft during the past 16 months.